Webster v. Bates Machine Company
| Decision Date | 19 March 1902 |
| Docket Number | 11,318 |
| Citation | 89 N.W. 789,64 Neb. 306 |
| Parties | JOHN H. WEBSTER, TRUSTEE, v. BATES MACHINE COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Buffalo county. Tried below before SULLIVAN, J. Reversed.
REVERSED AND REMANDED.
Dryden & Main and James H. McIntosh, for plaintiff in error.
William Gaslin, contra.
AMES C. DUFFIE and ALBERT, CC. concur.
This is an action in replevin which (a jury being waived) was tried upon a stipulation of facts. From this stipulation it appears that John H. Webster, the plaintiff in error, was the owner of the fee, in trust, of a certain manufacturing building and property situate in the city of Kearney in this state. In September, 1892, he executed a lease of the premises to one Barnheisel for a term of years, reserving rent, payable semi-annually. It was covenanted in the lease that the tenant should make certain repairs and improvements, and that, if he should pay his rent promptly when due, he should, at the expiration of his term, have the right to remove from the premises "the buildings which shall have been erected thereon by said second party, during the continuance of this lease, for an engine room and boiler house; also any new boilers and engines placed therein by second party." It was further covenanted "that the second party will put a new floor in the machine room and a new roof on the same erect new line shaft with proper pulleys; make all necessary additions, repairs and improvements, (except said new boilers and engines, with engine and boiler building) shall be and remain the property of said first party"; but, if the tenant should make default in the payment of rent, the lessor should be entitled to renter, and in such case all improvements made on said premises should be forfeited to him. The tenant made default of the first instalment of rent reserved by the lease, and the lessor on or about the 20th day of July, 1893, reentered upon the premises and took possession of all the improvements and machinery placed thereon by the tenant, including the engine which is the subject of this action, claiming title thereto under the above-mentioned covenants of the lease. Before the lease was made of record and before forfeiture thereunder had been incurred, the defendant in error, the Bates Machine Company, without any actual knowledge of the existence of the lease, sold and delivered to the tenant the engine which is the subject of this controversy, upon a written contract that the title to the same should not pass until full payment therefor, and caused the contract to be made duly of record in the office of the clerk of the county. Payment was never made. Upon this state of facts the logical conclusion seems to us irresistible that, as between the vendor of the engine and the lessor of the factory, the former has the better right. The latter is not a purchaser or mortgagee for value, nor is he an attachment or execution creditor. Under the covenants of his lease he was, upon default in payment of rent, to appropriate whatever machinery or appliance belonging to his tenant were to be found upon the premises, but he was not entitled to seize property found thereon, the title to which was in third persons,--especially so if such third persons, at the time they delivered the property upon the grounds, were ignorant of the covenants of the lease or even of the existence of that instrument. The tenant, at the time of the sale and delivery of the engine, was in possession of the factory, with all the external indica of ownership. From all that appears from the stipulation of facts, the vendors had a right to regard him, and did regard him, as the sole owner of the premises. As between the parties to this action the rights of the lessor, at the time he took possession of the buildings and machinery, did not rise higher than those of his tenant; and, as between the tenant and the defendant in error, the title to the machine was unquestionably in the latter.
But the plaintiff in error pleaded the statute of limitations, and upon this plea we think must prevail. It is stipulated that on the 20th day of July, 1893, the lessor "took possession of the said premises in which was the property involved in this suit and placed a watchman in charge of the same who has been at all times since that date until the commencement of this suit, in possession of said premises in which the property in question is now and has been situated since said Barnheisel [the tenant] put the same therein in 1892, nor did the said Bates Machine Company demand said property from the defendant herein, until shortly before the commencement of this suit." But it is further stipulated "that when defendant's agent in July, 1893, took possession of said paper mill, in which said property in controversy was left by Barnheisel, he...
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